Voluntary Assisted Dying and the Legality of Using a Telephone or Internet Service: The Impact of Commonwealth 'Carriage Service' Offences

Over the last five years, all Australian states have passed legislation to permit voluntary assisted dying (‘VAD’), under strict conditions. Although laws on VAD are a state responsibility, a significant hurdle to their implementation has been prohibitions in the Criminal Code Act 1995 (Cth) (‘Commonwealth Criminal Code’) on using a carriage service (including the telephone or internet) to counsel, promote or provide instruction on suicide. These provisions, enacted when VAD was unlawful in every Australian jurisdiction, have led state governments to instruct health practitioners to avoid discussing or facilitating VAD via telehealth. This article examines whether these concerns are founded and evaluates the extent of Commonwealth criminal liability that health practitioners might face for engaging in various conduct under the state assisted dying laws. The article argues that although the legal position is untested, VAD would likely meet the definition of ‘suicide’ under Australian law and hence fall under the Commonwealth Criminal Code. The article then evaluates the extent of potential criminal liability for using a carriage service in each step of the VAD process. It concludes that there are areas with real legal risk, especially for activities that directly facilitate VAD, requiring urgent reform of the Commonwealth law.